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ArtI.S1.2.4 Legislative Power and the Executive and Judicial Branches

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

A third purpose of the Framers for the Legislative Vesting Clause was to limit the extent to which the other two branches of government could exercise legislative power. The Framers crafted the Legislative Vesting Clause against the historical backdrop of English legal tradition that viewed, in the words of William Blackstone, a “tyrannical government” as one in which “the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men.” 1 For Blackstone, “wherever these two powers are united together, there can be no public liberty.” 2 And James Madison, echoing Blackstone and other prominent thinkers of the time, wrote in the Federalist Papers of the “necessary partition of power among the several departments, as laid down in the Constitution.” 3 In Madison’s view, the concentration of distinct forms of government power in the same entity would lead to tyranny as when a single entity had the power to both prescribe and enforce the law.4 To separate these powers, the Framers, in the first three Articles of the Constitution, vested the legislative powers in a Congress;5 the executive power in a President;6 and the judicial power of the United States “in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” 7

Although the Framers had concerns about the other two branches aggrandizing themselves at the expense of the Legislative Branch, they were unable to articulate a bright-line rule for identifying when such violations of the separation of powers principle had occurred. Indeed, Madison referred to the “separate and distinct exercise of the different powers of government” as “to a certain extent . . . admitted on all hands to be essential to the preservation of liberty.” 8 But he acknowledged the difficulty in distinguishing the legislative power from the judicial or executive power in some instances.9 Further, in contrast to some state constitutional provisions in existence at the time of the Founding,10 the text of the Constitution does not specifically prohibit the Executive or Judicial Branches from exercising legislative power.11

Indeed, while the Framers of the Constitution saw great importance in allocating the legislative power to a Congress, the design of the Constitution contemplates some overlap in the branches’ performance of government functions.12 Madison explained that even the influential French political philosopher Baron de Montesquieu, who once wrote that there could be “no liberty where the legislative and executive powers are united in the same person,” would have found it permissible for the functions of government to be shared, to some extent, among the branches.13 And Madison acknowledged that contemporaneous state constitutional provisions requiring a strict separation of powers were perhaps aspirational because, in practice, the branches of state governments sometimes shared such functions, as when a state senate served as a judicial tribunal for trying impeachments of executive or judicial officers.14 Thus, the Framers may not have understood the Legislative Vesting Clause as prohibiting the executive and Judicial Branches from performing functions that overlapped with those performed by Congress, so long as they were not purely legislative in nature.

Although the Founders wanted to prevent the Executive Branch and judiciary from aggrandizing their power by usurping the legislative role, it is unclear whether the Legislative Vesting Clause would have been understood to prohibit Congress from giving away its power to the other two branches. The text of the Constitution is silent with respect to the extent to which Congress is prohibited from delegating its legislative power to the Executive Branch, courts, or a private entity.15 The Framers debated the necessity of having a more express constitutional provision on separation of powers, but these debates did not lead to explicit limits on legislative delegations. For example, in the Convention debates, James Madison made a motion to give the national Executive the power to “execute such other powers ('not Legislative nor ‘Judiciary’ in their nature') as may from time to time be delegated by the National Legislature.” 16 The motion was defeated, with Charles Pinckney arguing that the language was “unnecessary, the object of [the language] being included in the ‘power to carry into effect the national laws.’” 17

The debates over who could exercise the legislative power continued into the First Congress. Following ratification of the Constitution, James Madison also introduced an amendment to the Constitution in the House of Representatives of the First United States Congress that would have provided that the powers “delegated by this Constitution to the Government of the United States, shall be exercised as therein appropriated, so that the Legislative shall not exercise the powers vested in the Executive or the Judicial; nor the Executive the power vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.” 18 Although James Madison argued that the amendment would help to resolve doubts about how the Constitution should be construed, Representative Roger Sherman opposed the amendment as “unnecessary” because the Constitution already vested the legislative, executive, and judicial powers in three separate branches.19 Although the House adopted the amendment, the Senate later rejected it without elaboration.20 Furthermore, the founding generation during the First Congress broadly authorized the President to perform tasks that required the Executive Branch to fill ambiguities and gaps in the statutory scheme created by the legislature. One oft-cited example is a 1789 Act of the First Congress that provided pensions to wounded and disabled Revolutionary War Veterans for one year “under such regulations as the President of the United States may direct.” 21 Nonetheless, the Framers did not appear to endorse wholesale delegations of the legislative power to the Executive Branch, and the import of the actions of the First Congress has been the subject of debate among legal historians.22

1 William Blackstone, Commentaries on the Laws of England 144 (J. B. Lippincott Co. ed., 1893). back
Id. back
The Federalist No. 51 (James Madison). The notion of separation of powers was drawn from classical political philosophy. See generally Baron Charles de Montesquieu, The Spirit of the Laws, at XI6, 157 (Anne M. Cohler, et. al., trans. & eds., 1989). back
See also The Federalist No. 47 (James Madison) ( “No political truth is . . . stamped with the authority of more enlightened patrons of liberty [than the separation of powers because the] accumulation of all powers, legislative, executive, and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.” ). back
U.S. Const. art. I. back
Id. art. II. back
Id. art. III. back
Id. at 289. back
The Federalist No. 37 (James Madison) ( “Experience has instructed us that no skill in the science of Government has yet been able to discriminate and define, with sufficient certainty, its three great provinces, the Legislative, Executive and Judiciary; or even the privileges and powers of the different Legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.” ). But see Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 342 (2002) ( “The terms ‘legislative,’ ‘executive,’ and ‘judicial’ meant something to Madison, even if he could not articulate precisely (or even vaguely) what they meant.” ). back
See, e.g., Mass. Const. of 1780, pt. 1, art. XXX ( “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.” ); Md. Const. of 1776, Declaration of Rights cl. VI ( “That the legislative, executive, and judicial powers of government, ought to be forever separate and distinct from each other.” ). But see S.C. Const. of 1776, art. VII (vesting the legislative authority in “the president and commander-in-chief, the general assembly and legislative council” ). back
Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 337 (2002) ( “[T]here is nothing in the Constitution that specifically states, in precise terms, that no other actor may exercise legislative power or that Congress may not authorize other actors to exercise legislative power. Such clauses were known to the founding generation.” ). back
Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam) ( “[The Framers] saw that a hermetic sealing off of the three branches of government from one another would preclude establishment of a Nation capable of governing itself effectively.” ); Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ( “[W]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” ). For more on the concept of “separation of powers,” see Intro.7.2 Separation of Powers Under the Constitution. back
The Federalist No. 47 (James Madison) ( “[Montesquieu] did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” ). back
Id. ( “If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which [the separation of powers doctrine] has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” ). back
Id. back
1 The Records of the Federal Convention of 1787, at 64, 67 (Max Farrand ed., 1911). back
Id. However, this historical episode sheds little light on whether the Founders would have understood the Constitution to permit Congress to delegate its legislative power, as Madison’s language would not have specifically permitted delegations of “legislative power,” and the records of the Convention debates do not fully explain the basis for Pinckney’s concerns. back
1 Annals of the Congress of the United States 789 (1789). back
Id. back
2 Bernard Schwartz, The Bill of Rights: A Documentary History 1151 (1971). back
Act of Sept. 29, 1789, ch. 24, § 1, 1 Stat. 95, 95. back
See, e.g., Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1733–34 (2002) ( “[T]here’s remarkably little evidence that the Framers envisioned [a nondelegation constraint] on legislative authority. . . . The Framers’ principal concern was with legislative aggrandizement—the legislative seizure of powers belonging to other institutions—rather than with legislative grants of statutory authority to executive agents.” ); Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 334 (2002) ( “If one is concerned about the original meaning of the Constitution, the widespread modern obsession with the nondelegation doctrine may have some justification.” ). back